The Ninth Circuit’s opinion (summarized here by Will) held that the college district’s decision not to apply its harassment policy against three contentious e-mails sent by Professor Walter Kehowski to his coworkers via a community listserv was proper and did not violate his offended coworkers’ right to be free of workplace harassment. Here on The Torch, we’ve discussed how the Ninth Circuit’s opinion, in addition to being a win for free speech on college campuses, affirms the central importance of personal and institutional academic freedom in higher education. (One thing institutional academic freedom does not permit, however, is violating the First Amendment rights of a professor in a case like this.) We’ve also discussed how the Ninth Circuit navigated the often treacherous waters of First Amendment forum analysis to find that speech on a listserv such as the one in question in this case is entitled to First Amendment protection.

There is yet another important ramification of this decision: The Ninth Circuit’s opinion is a powerful, clear statement about the proper scope of harassment law and its relationship with freedom of speech. In repudiating the plaintiffs’ claim that their Equal Protection rights were violated when the district refused to step in and sanction Kehowski for his e-mails under the existing harassment policy, the court affirmed that harassment, whether in the workplace or in the educational setting, has a precise and narrow legal definition. The court made clear that expression does not rise to the level of true harassment simply because some find it offensive or personally disagreeable, and that much expression that may be characterized as offensive or controversial is nonetheless constitutionally protected and therefore does not give rise to an actionable harassment claim.

The Ninth Circuit’s opinion, penned by Chief Judge Alex Kozinski, is a stirring tribute to the First Amendment, and it is worth quoting at length on this topic. At the onset of his analysis, Chief Judge Kozinski wrote:

Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs’ suit. Their objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. … "There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause."Saxe, 240 F.3d at 204; see also United States v. Stevens, No. 08-769, slip op. at 7 (U.S. April 20, 2010) ("The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits."). [Emphasis added; internal citations omitted.]

The point that there is "no categorical ‘harassment exception’" to the First Amendment is an extremely important one, and one that FIRE has made time and again, including in our legal scholarship. Harassment has a precise legal definition both in the employment setting and in the educational setting, and conduct that falls short of either of these definitions does not constitute true harassment in that particular setting. In the workplace, Supreme Court precedent tells us that harassment must include conduct that is "sufficiently severe or pervasive to ‘alter the conditions of [the victim’s] employment and create an abusive working environment.’" Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (citation omitted). This standard requires far more than the occasional offensive remark or politically charged e-mail—it typically requires a pattern of extreme or repetitive conduct. Therefore, the Ninth Circuit properly found that Kehowski’s speech did not come close to meeting the Supreme Court’s standard. The court expounded on its holding at length:

We therefore doubt that a college professor’s expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment and justify the judicial intervention that plaintiffs seek….Harassment law generally targets conduct, and it sweeps in speech as harassment only when consistent with the First Amendment…. For instance, racial insults or sexual advances directed at particular individuals in the workplace may be prohibited on the basis of their non-expressive qualities, Saxe, 240 F.3d at 208, as they do not "seek to disseminate a message to the general public, but to intrude upon the targeted [listener], and to do so in an especially offensive way,"… But Kehowski’s website and emails were pure speech; they were the effective equivalent of standing on a soap box in a campus quadrangle and speaking to all within earshot. Their offensive quality was based entirely on their meaning, and not on any conduct or implicit threat of conduct that they contained. [Emphasis added; internal citations omitted.]

The distinction between pure speech and conduct is again a point that FIRE has tried to drive home many times, and it is key to making sure that the application of harassment law does not improperly veer into the protected realm of the First Amendment. The portion of the Ninth Circuit’s opinion quoted above does a great job of explaining this distinction, and it will hopefully provide some much-needed guidance to university administrators and policymakers in their respective institutions’ policies and practices regarding harassment.

After all, while Rodriguez concerned the right of employees to be free of harassment in their workplace, the case arose in the university setting, and its outcome has major ramifications for higher education. Administrators should now realize, if they didn’t already, that the abuse of harassment rationales at colleges and universities to infringe upon free speech is legally untenable. As the Ninth Circuit’s opinion states in no uncertain terms, protecting the right to freedom of speech on a college campus is of utmost importance:

Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. See, e.g., Gitlow v. New York, 268 U.S. 652, 667 (1925); id. at 673 (Holmes, J., dissenting). The right to provoke, offend and shock lies at the core of the First Amendment.

This is particularly so on college campuses. Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities—sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments—have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale. "Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die." Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967) (quoting Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957)).

We hope that the message from Rodriguez comes through as clearly to the leaders and policymakers of our colleges and universities as it does to us. If so, the Ninth Circuit will have made a positive impact upon the relationship between the application of harassment law on university campuses and freedom of speech. There is very much in the Ninth Circuit’s opinion that is worth quoting here, and I urge readers to read the decision for themselves and ponder its eloquence and wisdom.